Malcolm Turnbull chose Harmony Day to announce the government’s intention of “strengthening the racial discrimination act” by making changes to the wording of section 18C of the Racial Discrimination Act. The section 18C defines offensive behaviours based on the race and ethnicity of the victim.
18C – Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
To prevent this legislation from unreasonably constraining freedom of speech, it is amended by section 18D which rules out comments that are done in good faith and for the artistic or academic purposes.
18D – Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
Despite the section 18D, a group in the Coalition view section 18C as an obstacle to freedom of speech in Australia. They have been pursuing the removal, amendment, or rewording the section for the past decade. The attempts were futile during Abbott’s government. After winning the election in 2016, Turnbull declared repeatedly that his government had no intention of spending time and energy on the Racial Discrimination Act while more urgent and crucial tasks were at hand. However, he eventually caved in and announced, on Harmony Day, the proposal to substitute “offend, insult, humiliate” with “harass”.
Photo by Rickky1409 – Own work, CC BY-SA 3.0
This announcement came after the Joint Committee on Human Rights released the result of its inquiry into the matter. The task of investigating the case of 18C was delegated to the committee in November 2016. After a few months of debate, several public hearings, and reviewing hundreds of submissions, the commission failed to offer a decisive recommendation and in effect, left the matter in the hands of the government. The government announced its final decision on 21 March.
The next stop for this legislation is the Senate. Many doubt the possibility of the changes being passed by the Senate because it requires the votes of The Nick Xenophon Team. Senator Xenophon recently ruled out voting for the changes to the wording of the section. His party, however, supports changing the Human Rights Commission’s complaint handling procedure. As the joint committee and many experts in this field have pointed out, the methods and procedure by which the commission handles 18C complaints are not perfect. The procedure has caused some widely publicised issues (e.g. the cases of Bill Leak and QUT students) that significantly reinforced the position of the supporters of the changes.
Some argue that the 18C has been an important legislation and should not be entirely disposed of simply because it has not been used effectively. The solution is to fix the procedure by which it is used. That is why a significant portion of the Joint Committee’s report was devoted to recommendations for improving the complaint handling procedure by the Human Rights Commission. Hopefully, the Senate would follow suit, leave the wording as it is, and instead, implement the Joint Committee’s recommendations.
What can we do?
The first thing we can do is to contact our senators and political leaders. We should make sure that they hear our voices in support of the current legislation and thus, prevent the changes from being passed in the Senate. We can persuade our representatives to follow the recommendations of the Joint Committee on Human Rights and improve the complaint handling procedure.
But if we fail to prevent the passage of the proposed changes, if 18C becomes only about “harassment and intimidation”, it will not be the end of the world. As Professor Gelber and Professor McNamara pointed out, “this would likely have no legal effect”. There is still enough substance left in 18C as well as other legislations that can be used to protect the minorities.
There is still more we can do. We should remember that we are living in a democracy …
Photo by Rickky1409 – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=33863546